Citation NR: 9741884
Decision Date: 12/18/97 Archive Date: 12/30/97
DOCKET NO. 97-16 997 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Huntington,
West Virginia
THE ISSUE
Entitlement to service connection for residuals of an eye
infection, claimed as blurred vision.
ATTORNEY FOR THE BOARD
Debbie A. Riffe, Associate Counsel
INTRODUCTION
The veteran had active service from June 1952 to June 1954.
This appeal arises from a March 1997 rating decision of the
Huntington, West Virginia Regional Office (RO), which denied
service connection for an eye infection and blurred vision.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he should be service connected for
residuals of an eye infection which was incurred in service.
He claims that he has had blurred vision for the past 35 to
40 years and that his vision problems are related to a severe
eye infection in February and March 1954.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1997), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran’s claim for
service connection for residuals of an eye infection, claimed
as blurred vision, is not well grounded and, as a matter of
law, must be denied.
FINDINGS OF FACT
1. The veteran’s claim that he currently has residuals of an
eye infection which was incurred during service was not
accompanied by any medical evidence to support that
allegation.
2. The claim for service connection for residuals of an eye
infection, claimed as blurred vision, is not plausible.
CONCLUSION OF LAW
The veteran’s claim for service connection for residuals of
an eye infection, claimed as blurred vision, is not well
grounded. 38 U.S.C.A. § 5107(a) (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Service medical records show that on a June 1952 enlistment
physical examination the veteran’s eyes were clinically
evaluated as normal and his vision was noted as 20/20 in both
eyes. Records in January and February 1953 show a diagnosis
of coryza. On a June 1954 separation physical examination,
the veteran’s eyes were clinically evaluated as normal and
his vision was noted as 20/20 in both eyes.
In the veteran’s March 1997 claim for service connection, he
indicated that he had an eye infection and blurred vision in
February 1954.
In a statement received in April 1997, the veteran indicated
that his initial disabilities began soon after discharge from
service and that he required glasses to help him with his
problem. He noted that he had seven brothers and sisters,
none of whom required glasses or had vision problems at the
age when his own disabilities occurred. The veteran
concluded that his disabilities were not hereditary. With
the statement, the veteran submitted NA Form 13055, in which
he indicated that he was treated for an infection in both
eyes from February to March 1954 at the field hospital at
Camp Casey in Korea. He also indicated the unit to which he
was assigned.
In April 1997, a medical statement from James Genin, M.D.,
dated in March 1997, was received. Dr. Genin indicated that
the veteran was seen in 1980 for a lid lesion on the left eye
and refraction for glasses; that in 1982 he was seen for an
episode of conjunctivitis in the right eye which responded
nicely to medication within one week; that in 1988 he was
seen in the emergency room for an ophthalmic migraine with
episodes of scintillating scotoma; and that since that time
his examinations have been primarily for glasses with no
medical treatment necessary. Dr. Genin stated that the
veteran had 20/20 vision, easily corrected with lenses, and
that he occasionally had drusen on retinal examination which
did not cause any disturbance in vision. When the veteran
was last seen in October 1996, he had 20/20 vision at near
and far testing.
In his May 1997 substantive appeal, the veteran argued that
the denial of service connection was based on an incomplete
service record. He stated that the lack of records at the
time of his eye trouble in service did not mean that such
trouble did not exist. He contended that he currently had
blurred vision which was related to a severe eye infection in
February and March 1954. He stated that the severity of his
problem may have decreased for a short period after discharge
from service but that the eye infection contributed to his
blurred vision which he has had for about 35 to 40 years.
The veteran stated that his vision problems were not
hereditary. He maintained that his claim was well grounded.
In May 1997, a photo of the veteran in uniform and two
statements from fellow soldiers of the veteran were received.
The photo, which was labeled with the date of February 14,
1954, was submitted to show that at the time of the photo the
veteran had what appeared to be puffy eyes. In his
statement, one fellow soldier noted that he was the assistant
to the veteran who was a squad leader; that in mid-February
1954 the veteran developed a bad eye infection and swelling
of the face which required a two-week hospitalization; that
when the veteran returned to his unit he was put on light
duty for another two weeks to help him recover; that the
events of the veteran’s hospitalization for an eye infection
were remembered because the veteran was not present in
pictures taken on the day that a movie celebrity visited the
troops; and that when the veteran left the platoon to return
to the States in May 1954 he assumed the veteran’s duties of
squad leader. In another statement, a fellow soldier
indicated that he clearly remembered the veteran’s serious
eye infection, his very puffy cheek, his time spent in the
hospital, and his recovery period.
In July 1997, the National Personnel Records Center (NPRC)
responded to the RO’s request for morning reports for the
entire year of 1954 for the veteran’s unit in Korea. The
NPRC indicated that morning reports were not a matter of
record, so that in order to obtain them an attached form
would have to be completed for a search through alternate
records search.
Under applicable criteria, service connection will be granted
for disability resulting from personal injury suffered or
disease incurred in or aggravated during active service.
38 U.S.C.A. § 1110.
The law provides that a claimant for benefits under a law
administered by the Secretary of the United States Department
of Veteran Affairs (VA) shall have the burden of submitting
evidence sufficient to justify a belief by a fair and
impartial individual that the claim is well grounded. The
Secretary has the duty to assist a claimant in developing
facts pertinent to the claim if the claim is determined to be
well grounded. 38 U.S.C.A. § 5107(a). Thus, the threshold
question to be answered is whether the veteran has presented
a well grounded claim; that is, a claim which is plausible.
If he has not presented a well grounded claim, his appeal
must fail, and there is no duty to assist him further in the
development of his claim as any such additional development
would be futile. Murphy v. Derwinski, 1 Vet. App. 78 (1990).
As explained below, the Board finds that the veteran’s claim
is not well grounded.
To sustain a well grounded claim, the claimant must provide
evidence demonstrating that the claim is plausible; mere
allegation is insufficient. Tirpak v. Derwinski, 2 Vet. App.
609 (1992). The determination of whether a claim is well
grounded is legal in nature. King v. Brown, 5 Vet. App. 19
(1993). A well grounded claim is a plausible claim, one
which is meritorious on its own or capable of substantiation.
Such a claim need not be conclusive but only possible to
satisfy the initial burden of 38 U.S.C.A. § 5107(a). Murphy
v. Derwinski, 1 Vet. App. 78, 81 (1990). To be well
grounded, a claim must be accompanied by supportive evidence,
and such evidence must justify a belief by a fair and
impartial individual that the claim is plausible. Where the
determinative issue involves either medical etiology or a
medical diagnosis, competent medical evidence is required to
fulfill the well grounded claim requirement of 38 U.S.C.A.
§ 5107(a ). Lathan v. Brown, 7 Vet. App. 359 (1995).
In order for a claim for service connection to be well
grounded, there must be competent evidence of a current
disability (a medical diagnosis), of incurrence or
aggravation of a disease or injury in service (lay or medical
evidence), and of a nexus between the inservice injury or
disease and the current disability (medical evidence.) The
nexus requirement may be satisfied by a presumption that
certain diseases manifesting themselves within certain
prescribed periods are related to service. Caluza v. Brown,
7 Vet. App. 498 (1995).
In this case, the veteran contends that he has had blurred
vision for the past 35 to 40 years and that his vision
problems were related to a severe eye infection which was
incurred during service in February and March 1954. Service
medical records, however, do not show any complaints,
clinical findings, or diagnosis of an eye infection or
defective vision. To show that he had eye problems in
service, the veteran submitted a photo of himself in uniform,
which he dated in February 1954, to demonstrate his puffy
eyes at the time. The veteran also submitted two statements
from fellow servicemen who knew him in Korea at the time of
the claimed eye infection. These statements support the
veteran’s claim that he was hospitalized for an eye infection
manifested by a swelling of the face and puffy cheek. Even
if the photo and lay statements are accepted as evidence of
some type of eye disorder during service, the veteran has not
submitted postservice medical evidence to show that a current
vision defect is related to the inservice eye disorder, in
order to justify the finding of a well grounded claim. The
only postservice medical record is a statement from Dr. Genin
in which he notes that since 1980 the veteran had been
treated for various eye disabilities and that since 1988 his
recent examinations had been for vision testing for glasses.
In fact, the veteran’s last examination in October 1996
showed that his vision was 20/20. While the veteran believes
that his vision problems are attributable to an inservice eye
infection, as a lay person, he does not have the medical
expertise necessary to diagnose his condition. See Grottveit
v. Brown, 5 Vet. App. 91 (1992); Espiritu v. Derwinski, 2
Vet. App. 492 (1992). Notwithstanding the fact that
refractive error of the eye is not a disability for which
service connection can be granted (see 38 C.F.R. § 3.303),
there is no competent evidence that the veteran’s claimed
blurred vision had its origins in service. Without such
evidence, the veteran has not met the initial burden required
by 38 U.S.C.A. § 5107(a) as the evidence submitted does not
cross the threshold of mere allegation. Therefore, without a
plausible claim for service connection for residuals of an
eye infection, claimed as blurred vision, the veteran’s claim
is not well grounded and must be denied.
ORDER
Entitlement to service connection for residuals of an eye
infection, claimed as blurred vision, is denied.
C.W. SYMANSKI
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1997), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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